Evans v. Ohio State Univ.

• Decision Date: 23 July 1996
• Docket Number: No. 95API08-965,95API08-965
• Citation: 112 Ohio App.3d 724,680 N.E.2d 161
• Parties: , 118 Ed. Law Rep. 1104 EVANS et al., Appellants, v. OHIO STATE UNIVERSITY, Appellee. *
• Court: Ohio Court of Appeals

Page 724

112 Ohio App.3d 724

680 N.E.2d 161, 118 Ed. Law Rep. 1104

EVANS et al., Appellants, v. OHIO STATE UNIVERSITY, Appellee. ^*

No. 95API08-965.

Court of Appeals of Ohio,

Tenth District, Franklin County.

Decided July 23, 1996.

Zellmer & Gruber, James R. Douglass and Beth Z. LaRue, Cleveland, for appellants.

Betty D. Montgomery, Attorney General, Peggy W. Corn and Catherine M. Cola, Assistant Attorneys General, for appellee.

DESHLER, Judge.

This is an appeal by plaintiffs, Carol Evans, individually, and as guardian and next friend of her daughter, Stephanie Foucher ("Stephanie"), from a judgment of the Ohio Court of Claims finding in favor of defendant, the Ohio State University, in a negligence action.

On April 25, 1994, plaintiffs filed a complaint against defendant, alleging that James Waites, a 4-H volunteer counsellor and judge, utilized his position as a 4-H advisor to lure Stephanie, a minor, to his residence, where he sexually assaulted her on May 30, 1992. It was averred that, notwithstanding the fact that defendant knew or should have known of Waites's known propensities to utilize his position as a 4-H advisor to assault minor children, defendant continued to retain Waites without adequate supervision and to hold him out as a reliable and competent member of the 4-H staff. The matter came for trial before the Court of Claims beginning on February 13, 1995.

Pursuant to R.C. 3335.36, defendant, through the College of Agriculture, conducts educational programs in conjunction with the Ohio Cooperative Extension Service ("extension service"). The extension service is an educational arm of various land grant universities in the United States, and it conducts educational activities related to agriculture, home economics, natural resources, family living and youth development. 4-H is the public name of the youth development effort within the extension service. There is an extension office in every Ohio county and defendant employs agents in these offices to coordinate and operate its programs, including 4-H. The central offices for the 4-H organization are at the Ohio State University in Columbus, Ohio.

At the county level, 4-H is organized, in part, through different committees. At the head of this committee structure is the 4-H committee, which is responsible for the final policy review of other committees. In addition to the 4-H committee, there are various advisory committees, including a saddle horse committee, dairy committee, market animal committee, small animal committee and home economics committee. There are also numerous 4-H clubs formed at the local county level. Each club has an organizational advisor, also known as a head advisor, as well as other volunteer assistant advisors. In order to become an advisor, an applicant must submit a written application with references. The county extension agent keeps a list of official 4-H volunteers.

In 1981, James Waites became a volunteer advisor for a 4-H club in Lake County, Ohio. Waites had two children in the 4-H program at the time. In 1984, he served on Lake County's 4-H market livestock committee.

In November 1984, Waites pled no contest and was convicted of gross sexual imposition and corruption of a minor. Waites served approximately two years in prison and was released in 1987; thereafter, he returned to his Lake County residence in Perry, Ohio.

In 1988 or 1989, Waites again became involved in 4-H activities in Lake County. The testimony at trial indicated that individuals in Lake County at that time were familiar with Waites and knew of his prior convictions. Among these individuals were Lake County 4-H advisors Mary Ann Zoldak and Linda Hofer, both of whom believed Waites was innocent.

Waites continued his involvement in Lake County 4-H until 1990 when, in August of that year during the Lake County Fair, a dispute arose between Waites and other members of the 4-H organization. Specifically, Waites made accusations that 4-H advisor Linda Hofer and her husband were raising sick goats, resulting in the contamination of other goats. Waites attempted to have the Hofers' goats removed from the fair. Waites also made accusations regarding the manner in which the goat judging was conducted at the fair that year.

In 1989, Thomas Hopkins was hired by defendant as the Ashtabula County extension agent to oversee the 4-H program in that county. One of the 4-H clubs in Ashtabula County at that time was the "All-County Kids." Cynthia Maddox Cook and Chris Malnar were advisors to the All-County Kids in the early 1990s.

The Ashtabula County Fair Board, through a cooperative arrangement, delegates responsibility for organizing the junior fair show to the Ashtabula County 4-H. One of the components of the junior fair is the junior fair goat show. In the late 1980s and early 1990s, the 4-H small animal committee made recommendations regarding the selection of judges for the county fair. Catherine ("Kitty") Butler, a 4-H advisor, worked on the small animal committee during those years and was the individual primarily responsible for selecting the goat judge at the fair during this time.

Butler was familiar with Waites, who had a reputation as a goat expert. They first met in 1983, at about the time Butler began raising goats as a business venture. Butler and Waites became friends through activities at goat shows and by working together on various goat-related projects. Butler invited Waites to be a judge at the Ashtabula County Fair in 1988 and 1989. Waites also was asked to speak at Ashtabula County 4-H sponsored prefair clinics in April 1991, May 1990, May 1989, and June 1988.

Waites received $25 for judging the goat show at the 1988 Ashtabula County Fair and $35 for judging the show at the 1989 Ashtabula County Fair. He received $15 for his work at the prefair clinic in 1989, and $20 for the clinic he conducted in 1990. Funding for judges at the fair is provided by the fair board.

In March 1990, Hopkins received a memo from Jodi Black, an employee of the Ohio State University ("OSU") extension office, indicating that Waites had served two years in prison for gross sexual imposition and corruption of a minor. Black, a 4-H animal science extension associate, was prompted to write the letter by a phone call she had received in early 1990 from a woman who had been a judge at the Ross County goat show. The caller told Black that " 'James Waites is on your nonrecommended, nonapproved, noncertified judges list, and I believe he is a convicted child molester. I'm not for sure, but I've heard that.' " As a result of that conversation, Black contacted Dr. John Stitzlein, the head of personnel for the OSU extension service, as well as James Helt, the state 4-H leader. Stitzlein and Helt recommended that Black send out a letter to county agents to inform the county extension personnel responsible for selecting junior fair judges of the facts concerning Waites. Black sent the letter to all eighty-eight Ohio counties.

Shortly thereafter, at an April meeting of the Ashtabula County 4-H small animal committee, Hopkins raised the issue of the Black memo. During that meeting, Kitty Butler stood up and spoke on behalf of Waites, stating that she had known Waites for a long time, that she was aware of his prior criminal record, and that she did not believe that he was guilty. Hopkins testified that several people then spoke up and indicated that, since Kitty Butler was familiar with the situation, having known Waites for a period of time, and based upon the fact that this was a "one-time situation, * * * we were only asking him to come and do a clinic, in a public setting, where he would be under our control, and then he would be back across the county lines, that it was a reasonable thing to * * * go ahead and ask him to come and allow him to do that clinic." Thus, following the meeting at which the memo was discussed, Waites spoke at a clinic in the spring of 1990 and he was a speaker at another clinic in the spring of 1991. Both of these clinics were open to the public. None of the advisors of the All-County Kids attended the April 1990 meeting, and the evidence indicated that neither of those advisors, nor any other advisors in Ashtabula County, were notified at the time of Waites's prior criminal record.

Stephanie Foucher joined 4-H in November 1991, and was a member until September 1992. Soon after joining 4-H, she became involved in a goat project. Stephanie asked Chris Malnar if she knew someone who could assist her with goats and Malnar suggested Waites. Stephanie and her stepfather subsequently went with Waites to Chesterland, Ohio to purchase a goat for Stephanie's project.

Stephanie recalled seeing Waites at the home of Chris Malnar during a meeting of the All-County Kids club in January 1992. Specifically, Stephanie testified as follows:

"Q. What was he [Waites] doing there at the meeting?

"A. Um, he was out back. All of us were in her house, and I think he was out back with her husband, and then he came in later and just stood around and watched us and butted in whatever he wanted to say.

"Q. When you say 'butted in,' was he talking--

"A. Well, he just put his two cents in.

"Q. And the subject, I take it, was goats?

"A. Yes."

Stephanie also indicated that she saw Waites at a club meeting at the home of Cynthia Cook. Stephanie stated that Waites once drove her home from an activity at a farm where other members of the club were in attendance. Stephanie did not recall seeing Waites at any club meetings held at the fairgrounds. Waites and Cook once came over to Stephanie's house to help dehorn Stephanie's goat. Waites came over to Stephanie's house on two occasions by himself to assist with Stephanie's goat. Stephanie indicated that she did not ask him to come to her house; rather, she stated, "usually he invited himself over." Waites made phone calls to Stephanie at her home and Stephanie recalled phoning Waites two or three...